Constitutional Court sets aside conviction of former law student

July 1st, 2022
Tuta v S (CC) (unreported case no CCT308/20, 31-5-2022) (Unterhalter AJ (Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Theron J and Tshiqi J concurring))

In a matter between Liqhayiya Tuta (the applicant) and the state (the respondent) the Constitutional Court (CC) upheld the appeal and set aside the sentence and the conviction of the appellant. The CC gave reasons for its decisions on 31 May 2022. This was after the applicant approached the CC to challenge his sentencing that was handed down by the Gauteng Division of the High Court, Pretoria in 2019.


According to the evidence adduced by the state on 2 March 2018, the applicant, who was the accused at the time, was crossing the street, and walking with another man. According to the testimony of Constable Lawrence Makgafela on patrol duty, one of the men was hiding what looked like a laptop under his tracksuit jacket, which appeared suspicious. Makgafela further stated that the lighting in the street was good, and he and his partner, Constable Nkosinathi Sithole, kept the men under surveillance. The policemen followed the applicant and the man he was with, which led to a chase, with Constable Makgafela pursing the two men on foot while Constable Sithole was in a car, which he used to block the two men.

According to the evidence, Constable Sithole managed to trip the man carrying the laptop, who fell and caused the laptop to slide away from the man’s body. Constable Sithole then pinned the man down by stepping on his back and neck behind his shoulders. The man struggled to get away, but was pinned down. The policeman identified themselves and asked the man why he attempted to run away and received no answer. The policemen proceeded to tell the man that he was arrested for possession of suspected stolen property and proceeded with the arrest. According to the state after Constable Makgafela returned from fetching handcuffs, he was hit on the left side of the face, to a point where he felt dizzy. He also realised at the time that something had happened to his colleague Constable Sithole.

According to the state’s evidence, Constable Makgafela was bleeding and could not even use his phone due to the blood dripping all over his phone. The evidence further added that the two constables were assisted by a young man who went and reported the incident to a nearby police station. However, the defence stated that Mr Tuta was defending himself, from two men who never identified themselves as policemen. Mr Tuta was under the impression that the two men were about to rob and kidnap him.

The defence stated that Mr Tuta was a law student at the University of South Africa who resided in Sunnyside, a suburb in Pretoria, at the time of the incident. He was accompanying a friend on the night of the incident. According to the defence, Mr Tuta carried a knife in his trouser pocket due to the fact that it was a dangerous area. While walking on the sidewalk he noticed a car approaching at speed. The defence stated that the occupants in the car addressed Mr Tuta and his friends in a language they did not understand.

The defence added that Mr Tuta and his friend ignored the occupants and proceeded walking, until one of the occupants exited the car with a gun, which he cocked, causing Mr Tuta and his friend, to run to a nearby Shell garage where his friend caught up with him. According to the defence the same man with the gun caught up with them, which led to Mr Tuta and his friend running again. The man with the gun chased them in the middle of the street, when the car driving at speed stopped right in front of Mr Tuta.

The defence stated that Mr Tuta was tripped, and he fell on his back and the man stepped on his chest. Mr Tuta asked the man what they had done, he was, however, insulted and sworn at. He was pulled to his feet and taken to the car. According to the defence, Mr Tuta was forcefully pushed into the car. He resisted and took out his knife and stabbed the man who at the time held a taser. Mr Tuta tried to run after seeing a blue light in the distance, but he was apparently blocked by the second man. Mr Tuta stabbed the second man as well. According to the defence, Mr Tuta said he did not see where he stabbed the two men.

The defence stated that Mr Tuta managed to break free and ran away, seeking help at the first place of business he found open, but he was chased away by security. He then ran to his place of residence and alerted security and later his friends and his sister whom he told over the phone. According to the defence, the following morning of the incident, Mr Tuta accompanied by his sister went to report the incident at the police station in Sunnyside, explaining what had happened. However, the police said he could not open a docket, but instead, supplied Mr Tuta with a telephone number but did not say whose number it was. Mr Tuta was turned away by the police. He was later arrested and handed in the denim jacket he was wearing at the time. He denied he had a laptop with him that night and denied the men involved had identified themselves as police to him.

The defence pointed out that after he was arrested, Mr Tuta made a statement to a police officer and went on to point out the places where the incidents occurred. According to Mr Tuta’s, fellow student and friend J Nkuna, while walking down the street noticed a vehicle behind them and people calling in an unknown language. Mr Tuta said they must walk faster less they got robbed. A person then shouted behind them, and they heard the cocking of a firearm. The two started running and split up. Mr Nkuna was distressed by the incident of a cocking firearm and decided to go home. He did not meet with Mr Tuta again that night. On his way home he came across a scene surrounded by a crowd. On the ground were two people but he could not see them. He heard one person cry out that the police and an ambulance should be called. According to Mr Nkuna, he did not see bulletproof vests that night and he did not hear anybody calling out that they were ‘police’.

In deciding the issue, the High Court said it had to consider all the evidence, including circumstantial evidence holistically. The High Court added that Constable Makgafela made a good impression as a witness, that he did not contradict himself and his evidence was clear and satisfactory in every material respect. The High Court said that the following uncontested circumstances were material:

‘(i) The two experienced policemen were tasked to patrol the crime ridden area of Sunnyside in accordance with a police project called Fiela, when they noticed two pedestrians.

(ii) The policemen followed the two pedestrians for some time down several streets, for a considerable distance, and even losing sight of them at a stage. The policemen kept their vigilance and got sight of them again and decided to move in’.

The High Court said the reason why the policemen followed the two men was that they suspected that one of them was in a possession of a suspected stolen object that looked like a laptop. Although the laptop was never recovered. The High Court added that, the version of Constable Makgafela had a ring of truth. That otherwise it had to be inferred that the policemen for an unknown reason targeted two innocent pedestrians. The High Court said that it did not make sense.

The High Court found that the state had proved its case beyond reasonable doubt and that Mr Tuta’s version of putative self-defence should be rejected as false, subsequently concocted, and not reasonably possibly true.

The High Court convicted Mr Tuta on both counts as charged namely, count 1: Murder; and count 2: Attempted murder.

The CC’s majority judgment

In the majority judgment by Unterhalter AJ, he said that he was fortified in his conclusion that the trial judge made an error of law in the assessment of the applicant’s evidence at trial. He added that he engaged this inquiry, not to determine whether the trial judge failed to apply the law, a matter, standardly, outside of the CC’s jurisdiction, but rather to consider whether the trial judge sought to make findings as to the applicant’s state of mind, free of considerations of reasonableness.

The court pointed out that the trial judge approached the case on the basis that if he believed Constable Makgafela’s evidence, the applicant must be disbelieved, more particularly as to whether Constable Makgafela had informed the applicant that his pursuers were police officers. Unterhalter AJ added that this binary approach failed to consider whether the applicant, in fact, appreciated what had been said to him. The applicant’s evidence was that he was sworn at by his pursuers in a language he did not fully understand. Whether the applicant’s version was reasonably possibly true required a careful assessment of what occurred after the applicant had stabbed the police officers.

Unterhalter AJ said that the applicant’s evidence was that, after the stabbing, he told the security guards in the vicinity that he was being pursued and sought help. He then went to his residence and reported the matter to the security guards there; he telephoned his sister and told her what had happened. He explained that he stabbed two men who tried to rob and abduct him. The next day, the applicant and his sister went to the police station to report the matter.

The court added that the police declined to open a case because the applicant could not identify his attackers. Later, the applicant was arrested at his residence. Since Constable Makgafela testified that he did not know the applicant the overwhelming likelihood is that the police only knew of the applicant’s place of residence, because of the applicant’s report to the police. He said that the evidence of what occurred after the stabbing was not challenged by the prosecution. Yet the trial judge rejected it as inconsistent and improbable and did so absent of any explanation as to how the police came to learn of the applicant’s identity and place of residence, save for the report that the applicant had made to the police. He pointed out that the applicant’s account of what he did after the stabbing is consistent with his version that he thought he was being attacked by assailants, that his life was in danger, and that he had stabbed the deceased and Constable Makgafela in the belief that he needed to protect himself.

Unterhalter AJ said that the trial judge focused his assessment on the applicant’s state of mind, and he could not have simply rejected the post-stabbing conduct of the applicant as improbable. He added that it was, after all, uncontradicted and borne out by the arrest of the applicant. It was evidence supportive of the applicant’s account and his state of mind. He said what this illustrates is that the trial judge did not have the applicant’s state of mind at the forefront of his assessment. Rather, his assessment of the applicant’s defence was marked by what he reasoned to be objective considerations and probabilities.

The court held that it is the very ambiguity that lies at the heart of the trial judge’s formulation of the test for putative private defence. The state of mind of an accused is to be judged, the trial judge stated, based on ‘what the accused had in mind, objectively considered’, and hence on the basis of reasonableness. He said that is not the correct test. But it appears to have been the operative test used by the trial judge. He added that this too, then, supports the interpretation of the test for putative private defence enunciated by the trial judge in the extempore judgment, as being a test that references objective considerations.

The CC pointed that the trial judge made an error of law going to the heart of the applicant’s defence. The conviction and sentence of the applicant by the trial judge cannot survive this error. The applicant’s appeal on this ground succeeds, and his conviction and sentence for murder and attempted murder must be set aside. He said that for these reasons, the CC issued the order on 13 May 2022 in which it upheld the applicant’s appeal, set aside the order of the High Court, acquitted the applicant, and ordered his immediate release.

The dissenting judgment

The dissenting judgment by Kollapen J (Mlambo AJ concurring) looked at whether a constitutional issue arose and whether there was ‘something more’ that Bogaards v S 2012 (12) BCLR 1261 (CC) alludes to present in these proceedings? The CC said that in his written submissions, the applicant contended that, while sentencing ordinarily involves the exercise of a true discretion by a court, in the context of the provisions of the Act, the existence or otherwise of substantial and compelling circumstances involves a value judgment as opposed to the exercise of a discretion. The court added that this issue is not a novel one and had come before the court on numerous occasions and in approaching the matter, one must be careful to distinguish between what is regarded as the general sentencing discretion of a court as opposed to the determination of substantial and compelling circumstances.

The CC cited S v Salzwedel and Others [2000] 1 All SA 229 (A), where the Supreme Court of Appeal (SCA) held that –

‘the determination of a proper sentence for an accused person fell primarily within the discretion of the trial judge and that this court should not interfere with the exercise of such a discretion merely because it would have exercised that discretion differently if it had been sitting as the court of first instance. This submission is undoubtedly correct, but it is clear that:

“[t]he court of appeal, after careful consideration of all the relevant circumstances as to the nature of the offence committed and the person of the accused, will determine what it thinks the proper sentence ought to be, and if the difference between that sentence and the sentence actually imposed is so great that the inference can be made that the trial court acted unreasonably, and therefore improperly, the court of appeal will alter the sentence.’”

The CC added that similar sentiments were expressed by this Court in Bogaards when it said that: ‘Ordinarily, sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentences imposed by courts below is circumscribed’.

The CC pointed out that in these circumstances where the sentencing court exercises a sentencing discretion in the true sense, the scope for appellate interference is circumscribed.

In Wijker v Wijker 1993 (4) SA 720 (A), the SCA after referring to Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (‘Perskor’) 1992 (4) SA 791 (A) described a true discretion and the limitation on appellate interference therewith as follows:

‘However, as I stated above, the word discretion is used here in a wide sense. Henning “Diskresie-uitoefening’ in 1968 THRHR 155 at 158 quotes the following observation concerning discretionary powers:

“[A] truly discretionary power is characterised by the fact that a number of courses are available to the repository of the power” (Rubinstein Jurisdiction and Illegality (1956) at 16).’

The CC said that the essence of a discretion in this narrower sense is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a court would have preferred him to have followed a different course among those available to him. I do not think the power to determine those certain facts constitute an unfair labour practice is discretionary in that sense. The CC added that such a determination is a judgment made by a court in the light of all relevant considerations, does not involve a choice between permissible alternatives. In respect of such a judgment a court of appeal may, in principle, welcome a different conclusion from that reached by the court a quo on the merits of the matter.

The CC pointed that while those views correctly express the law as far as it relates to the general exercise of a discretion by a court and the limited scope of appellate interference. The more limited issue that arises in these proceedings, and one that the directions issued sought to engage with, was confined to the nature of the decision of a court in the context of minimum sentences and the character of that decision as it relates to the existence of substantial and compelling circumstances.

The CC added that in S v GK 2013 (2) SACR 505 (WCC), the court expressed similar views and explained how the exercise of a sentencing discretion and that of a value judgment were different, but existed within the same sentencing framework that governs minimum sentences when it said:

‘It is appropriate first to say something concerning the approach of an appellate court to a trial court’s finding as to the presence or absence of substantial and compelling circumstances. I do not think a trial court’s finding on this question is a matter with which an appellate court can interfere only if there has been a material misdirection or if the sentence is “disturbingly” inappropriate or induces a sense of “shock”. That is the approach when an appellate court considers a sentence imposed in the exercise of the trial court’s ordinary sentencing discretion. In terms of s 51 of the Criminal Law Amendment Act 105 of 1997 certain minimum sentences are prescribed and the court is deprived of its ordinary sentencing discretion, unless substantial and compelling circumstances are present. The presence or absence of such circumstances is thus the jurisdictional fact (to borrow an expression from administrative law) on which the presence or absence of the ordinary sentencing discretion depends. A determination that there are or are not substantial and compelling circumstances is not itself a matter of sentencing discretion.

The question whether such circumstances are present or absent involves a value judgment, but unless there are clear indications in the Act that this value judgment has been entrusted solely to the discretion of the trial court, an appellate court may form its own view as to whether such circumstances are or are not present. The fact that a judicial power involves a value judgment does not in itself mean that it is a discretionary power in the sense that an appellate court’s power to interfere is circumscribed’ (see Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (4) SA 791 (A) at 800C-G)’.

The CC pointed out that the reference to S v Malgas 2001 (1) SACR 469 (SCA) where the court set the basis for the determination of substantial and compelling circumstances as to whether an injustice would occur, accords with the approach that the court is ultimately exercising a value judgment when it decides on the existence or not of substantial or compelling circumstances. The CC said this would in turn permit a widened scope for appellate interference as opposed to where the sentencing court exercises a discretion in the true sense.

The CC said in S v SMM 2013 (2) SACR 292 (SCA), the SCA also spoke of an ‘appropriate sentence in the context of minimum sentences as one that would not be unjustly disproportionate if regard was had to the offence, the offender and the interests of society’. S v SMM held: ‘Life imprisonment is the most severe sentence which a court can impose. It endures for the length of the natural life of the offender, although release is nonetheless provided for in the Correctional Services Act 111 of 1998. Whether it is an appropriate sentence, particularly in respect of its proportionality to the particular circumstances of a case, requires careful consideration. A minimum sentence prescribed by law which, in the circumstances of a particular case, would be unjustly disproportionate to the offence, the offender and the interests of society, would justify the imposition of a lesser sentence than the one prescribed by law. As I will presently show, the instant case falls into this category. This is evident from the approach adopted by this court to sentencing in cases of this kind.’

The CC added that the existence of what may be described as two different sentencing approaches that the court in S v PB 2013 (2) SACR 533 (SCA) made reference to is clearly justified and warranted by the far-reaching nature that the Correctional Services Act has introduced into our law. The CC said while it has not removed the sentencing discretion, it has fettered it to some extent and with that comes the likelihood of a sentencing framework that may pose a significantly higher risk to the freedom of the individual and considerations of a fair trial.

The CC added that in those circumstances an error in a finding of substantial or compelling circumstances is inherently more damaging to the constitutional values of freedom and liberty, justifying at the level of principle a wider scope for appellate interference. Reverting to the question posed in Bogaards whether the appeal raises a constitutional issue as the applicant says it does, the answer must be no. The CC pointed out that the law is settled that a court brings out a value judgment when it makes a determination on the existence of substantial and compelling circumstances. An appellate court is entitled to interfere with that decision if an error has occurred and Malgas sets the threshold for such interference as being a sense of injustice with the sentence imposed. The CC said that the issue advanced by the applicant that the High Court erred in finding that there were no substantial and compelling circumstances does not raise a constitutional issue. The CC added that no other basis for interference with the sentence was advanced other than simply the contention that the sentence is disproportionate. Bogaards reminds us that this is not a basis for intervention. The CC said it is for those reasons that the application for leave to appeal against sentence must fail. The CC pointed out that it would therefore have refused leave to appeal against conviction and sentence

On 13 May 2022, the CC made the following order:

‘1. Leave to appeal was granted.

  1. The appeal is upheld and the conviction and sentence are set aside.
  2. The order of the High Court of South Africa, Gauteng Division, Pretoria is replaced with the following:

“The accused is found not guilty and acquitted.”

  1. The Head of the Kgosi Mampuru II Central Correctional Centre, Pretoria, alternatively the Head of the Johannesburg Correctional Service or, the Head of the relevant facility where the applicant has been transferred to, is directed to release the applicant, Mr Liqhayiya Tuta, from prison immediately.

Reasons for this shall be given at a later date’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (July) DR 28.

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